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Rethinking Legal Retribution Rethinking Legal Retribution

Stephen Parsley Georgia State University

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RETHINKING LEGAL RETRIBUTION

by

STEPHEN C. PARSLEY

Under the Direction of Andrew J. Cohen and William Edmundson

ABSTRACT

In this paper I discuss retributivist justifications for legal punishment. I argue that the main moral

retributivist theories advanced so far fail to support a plausible system of legal punishment. As

an alternative, I suggest, with some reservations, the legal retributivism advanced by Alan

Brudner in his Punishment and Freedom.

INDEX WORDS: Retributivism, Punishment, Criminal justice, Law, Crime

RETHINKING LEGAL RETRIBUTION

by

STEPHEN C. PARSLEY

A Thesis Submitted in Partial Fulfillment of the Requirements for the Degree of

Master of Arts

in the College of Arts and Sciences

Georgia State University

2011

Copyright by

Stephen C. Parsley

2011

RETHINKING LEGAL RETRIBUTION

by

STEPHEN C. PARSLEY

Committee Chair: Andrew J. Cohen

William Edmundson

Committee: Andrew Altman

Electronic Version Approved:

Office of Graduate Studies

College of Arts and Sciences

Georgia State University

August 2011

iv

DEDICATION

Some of my earliest memories are of the wonderful conversations I had with my grandfather,

Bill Colmery. At an early age I would spend hours asking and hearing from him about biology

and history. Eventually politics entered the field of conversation, and later, theoretical physics. It

is very likely that I would never have ended up in writing a graduate thesis in philosophy without

him. His breadth and depth of knowledge continue to amaze me, and his kind encouragement

means very much to me. This thesis is dedicated to him. Thanks, Papa.

v

ACKNOWLEDGEMENTS

I thank John Simmons for first introducing me to the study of legal philosophy and for giving me

the advice to attend Georgia State’s philosophy program. I thank all my committee members for

spending time with me during this writing process. I thank Andrew Altman for agreeing to be on

my committee before we had ever met, having only seen a much-confused prospectus from me. I

am grateful to him for having the hope that my thesis could turn out to be worthwhile. AJ Cohen

gave me helpful comments on a paper I wrote in his Philosophy of Law class that was an early

precursor to the second chapter of this thesis. He read through multiple drafts of these chapters

and has helped me with very detailed comments and patient explanations. I thank him as well for

helping keep me on track through this maze of deadlines where I might otherwise have lost my

way. William Edmundson was a great teacher in the class I took from him last spring. I thank

him for giving me some excellent guidance when I proposed a previous, somewhat related idea

for my thesis to him. Without his feedback, I might have wasted a lot of time trying to develop a

thesis around what I now realize to have been a category mistake. The process of writing this

thesis has been an incredible learning process not only in the topic of punishment, but also about

how to approach a broad philosophical question. I thank everyone who has played a part in this

work.

vi

TABLE OF CONTENTS

ACKNOWLEDGEMENTS

1 INTRODUCTION

1.1 What it Means to “Justify Punishment”

1.2 The Law and Moral Obligations

2 MORAL RETRIBUTIVISM

2.1 Morris: Punishment as Distributive Justice

2.2 Hampton: Vindicating the Victim’s Value

2.3 Moore: Best Explanation for Our Intuitions

3 LEGAL RETRIBUTIVISM

3.1 Fingarette: Retribution as a Requirement of Law

3.2 Brudner: Punishment Guided by Freedom

3.3 Advantages of Legal Retributivism

4 OBJECTIONS

4.1 Punishment of Morally Neutral Acts

4.2 Measuring Punishment

4.3 Must Retributivism be Pure?

BIBLIOGRAPHY

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1

1 INTRODUCTION

Although retributivism has its roots in the thought of Kant and Hegel,1 it was not until the second

half of the 20th

century that philosophers began to develop detailed retributivist theories. Since

then, retribution arguably has displaced its chief rivals—deterrence and rehabilitation—as the

most influential explanation for punishment. The details of the connection between punishment

and desert vary among retributivists, but the central feature of retributivism is that punishment is

supposed to be given if a person deserves it. To a retributivist, whether punishment has any

further consequences (such as deterrence, education or reform of the wrongdoer) either is

irrelevant to or only has a more general connection to its justification. While retributivists have a

variety of concerns, all that I am aware of share a particular concern for legal retribution: that is,

they want to justify punishment by the legal system, distinguished from other sorts of institutions

(or individual actors).2 In this paper, I will focus on legal retributive punishment, although some

of the ideas will be relevant to other settings in which punishment is administered (schools,

families, etc.). My thesis in this paper is that a justification for legal retribution is best given by

legal retributivism: a theory that explains why (and when) the legal system ought to punish

lawbreaking, rather than other moral aspects of criminal acts.

Three of the most influential contemporary retributivist theories of punishment are those

of Herbert Morris, Jean Hampton and Michael Moore. Their theories are different enough that

each will receive its own analysis in Chapter II, but there is enough similarity between them to

classify them as forms of moral retributivism. What justifies the “moral” designation is that these

1 However, cf. John Cottingham in "Varieties of Retribution," Philosophical Quarterly 29 (1979): 244 for a

plausible argument that Hegel’s famous statement that punishment “annuls the crime” is better understood as a

theory of restitution, rather than retribution. 2 Here it is important to note that this does not necessarily mean punishment by the state. The presence of a state is

neither necessary nor sufficient for the presence of a legal system. Those condemned by a legal system might be

declared outlaws (denied any legal protection), or their punishment might be set by a judge but left to whichever

2

theorists attempt to derive a justification for legal punishment from moral principles (Morris and

Hampton) or intuitions (Moore) that are not specific to the law. To put it another way, moral

retributivists seek to explain criminal desert as a certain type of moral guilt that would exist even

in non-legal contexts (such as a desert island, a setting first employed by Kant). The problem I

identify with all of these attempts is that penal desert cannot be explained well on the basis of

moral guilt. I call this the congruence problem: the classes of acts for which their arguments

support punishment are incongruous (too broad, too narrow, or both) with the acts that ought to

be punished. Each moral argument either cannot justify punishment for some crimes that ought

to be punished or logically supports punishing acts that are not, and should not be, criminal, or

both.

The third chapter will discuss two variations of legal retributivism. I examine the theory

of Herbert Fingarette, who argues that retributive punishment is entailed by the concept of law in

response to legal violations. Fingarette’s account is a promising start to legal retributivism, but is

incomplete—it requires a general justification of law. Alan Brudner gives a fuller justification of

legal punishment based on the argument that the law is directed towards the protection of

freedom, in both a formal and a substantial sense. Brudner’s theory is complex, but I argue that it

improves on the weaknesses of Fingarette’s account, and that it shows a comprehensive, if

rough, legal retributivist justification of punishment. I then show how legal retributivism is

superior to moral retributivism on several criteria relevant to a justification of punishment.

In Chapter IV, I examine several objections likely to be prompted by my discussion of

legal retributivism. First is the objection that legal retributivism’s separation of moral guilt from

penal desert would allow the legal system to punish morally neutral acts. Second, I examine the

members of the society wished to carry it out, among other possibilities. This means that we can put aside the topic

of state legitimacy.

3

concern that legal retributivism does not provide a principle for choosing the type and amount of

punishment. Lastly, I look at an objection that could be lodged against any version of “pure”

retributivism: that the theory’s singular focus on the desert of a criminal excludes consideration

of consequences, such as deterrence and reform, that are part of how we judge punishment’s

success.

1.1 What it means to justify punishment

Before diving in to the details of retributivism, it is important to clarify exactly what it means to

“justify (criminal) punishment.” Michael Davis3 helpfully distinguishes between three senses of

the phrase: 1) justification of an institution (why the legal system should punish violators) 2)

justification of a statutory penalty assigned to a crime, 3) and justification of a specific sentence

carried out (i.e. who should be punished, and how the amount of punishment should be

determined for specific criminals). I will refer to the first as the institutional justification, the

second as the legislative justification (since it is a legislative function to match penalties with

act-types), and the third as the sentencing justification (since the judiciary sentences criminals).

Although these three issues are related, they are distinct topics. Any theory might be intended to

give a justification for only one or two of these. Furthermore, a punishment theorist might give

very different governing principles for each topic, such as the mixed theory,4 which argues that

the “general aim” of punishment—analogous to the institutional justification—is to secure some

net social gain (such as deterrence and reform), but that desert operates as a constraint when

determining whether and how to punish a criminal. Unfortunately, punishment theorists often fail

to mention the tripartite distinction or any other comparable division. As a consequence of this

3 Davis, Michael. “The Relative Independence of Punishment Theory,” Law and Philosophy Vol. 7, No. 3 (1988 -

1989): 323.

4

omission, it can be unclear whether a theorist intends to give a single justification for all three

topics, or instead intends for the theory to address only one of those topics.

For example, consider the statement, “punishment is justified on the basis of deterrence.”

Interpreted in the first—the institutional—sense, this statement would mean that we have the

practice of punishment to dissuade persons from breaking the law. This would be a fairly

plausible institutional justification. However, when taken in the legislative sense, the statement

would mean that the penalty for a crime should be set by statute based on how it would affect

potential lawbreakers. It is easy to imagine that with the penalties selected would be excessive.

Deterrence is even more problematic when interpreted in the sentencing sense. Judges and juries

might find that giving the maximum sentence to a person despite excusing or mitigating factors,

or even making a scapegoat of an innocent person, would be an effective deterrent. If a theorist

does not take pains to be clear, then, it can be difficult to know whether she is giving a plausible

justification for the institution of punishment, or a very problematic justification for all three

topics. When discussing versions of moral retributivism in Chapter 2, I will examine the

arguments in all three senses.

To give the moral retributivists Morris and Hampton the best possible reading, we can

assume that their claim is not that the judicial system is motivated by their particular moral

principle. The second reading is more plausible: that a judicial system is justified because the

overall effect of its functioning, regardless of the officials’ intents, is to accomplish the particular

moral principle. Under this reading, a general system of punishment is justified when it works to

cancel out unfair advantages (Morris) or to repudiate criminals’ false claims about victims’

moral worth (Hampton). Still, with neither of the theories can this claim stand up under scrutiny,

4 As espoused by H.L.A. Hart, Punishment and Responsibility, Oxford: Oxford University Press, 1968.

5

as Chapter II will show. Even an idealized judicial system cannot be well characterized as

primarily accomplishing either of the moral principles given by Morris or Hampton.5

1.2 Moral obligations and the law

For a retributivist, legal or moral, the question of when the state is justified in punishing

violations of the law seems to be connected with the question of when citizens are obligated to

obey the law. It would be bizarre for a retributivist to argue that someone is morally deserving

punishment for breaking a statute that she was not morally obligated to follow. Any retributive

theory of punishment must address questions about how the law affects moral obligations: Do all

statutes create moral obligations, or only some? If only some statutes can create moral

obligations, what distinguishes these statutes? Should the legal system punish immoral acts that

are not prohibited by statutes? We have to consider several types of situations in which morality

and law are not coextensive: (1) acts that are immoral but not prohibited by the legal code, (2)

statutes that require immoral acts (such as prohibiting citizens from giving food to homeless

persons), and (3) illegal acts regarding which there is no pre-legal moral obligation6 either

positive or negative.

5 Each theory fails to give a good explanation for an important area of law: Morris has difficulties with senseless

acts that fail to provide any objective gain for the criminal, while Hampton cannot account for acts that do not have

a clear victim. 6 As I use it, the “pre-” in “pre-legal moral obligation” does not indicate temporal order, but rather the logical

moment at which the obligation exists. A pre-legal moral obligation exists both before law is extended to some area,

but also exists if the statutory prohibition is removed. For example, some American states have criminalized

adultery but later repealed those statutes. The moral obligation to honor marriage vows existed before the adultery

statutes were instituted and continued to exist after they were removed.

Acts for which there is no pre-legal moral obligation are a more complicated matter—the moral obligation created

by a statute might or might not continue to exist in its absence The moral obligation to report one’s income to the

government would not exist if there were no statutes requiring it. On the other hand, if traffic regulations were

repealed, the moral obligation to drive on a particular side of the road would continue, since citizens have formed a

legitimate expectation that others will follow the practice. To put it in H.L.A. Hart’s terms, the primary rule remains

in the society even after the legal system has withdrawn from that sphere.

6

One view that could be adopted is that there is a general duty to obey the law. Under this

view, any statute creates a moral obligation (perhaps with the caveat that the legal system must

be generally just), regardless of the previous moral status of the act. This theory is faced with the

objection that it would require obedience in the case of immoral statutes (category 2 in the

preceding paragraph). I see two general sorts of responses. The first would say that the moral

obligation of law is qualified—it disappears if a statute requires something immoral. This

response is unconvincing, for it says that we are obligated to do moral acts when legally required

to, but are not obligated to do immoral acts when legally required. Here, morality appears to be

both necessary and sufficient to obligate a person to act in accord with statutes: law has no

identifiable role.

Alternatively, we might say that law always creates a moral obligation, and that in the

case of immoral statutes, we have a case of moral conflict.7 Even if we make the right (or

perhaps more accurately, better) choice by disobeying the law, we are still violating a moral

obligation. The obligation to obey the law never disappears, but it sometimes is overridden

(rather than cancelled) by other moral obligations. Presumably, the person would still deserve

some punishment for breaking the law, even though he is not blameworthy. This seems the better

way to go about defending a general duty to obey the law. However, since a general duty to obey

the law is not advocated by any of the moral retributivists I will consider, I will put this

possibility aside for now. In any case, convincing enough arguments against the duty to obey the

law have been made by John Simmons8 (among others) that we should view the idea as, at best, a

fallback option for an explanation of punishment.

7 This is roughly Hegel’s view of Sophocle’s Antigone: that the protagonist’s choice was not so much between a

moral obligation and the threat of unjust force, but between two valid yet conflicting moral demands. 8 Wellman, Christopher Heath, and A. John Simmons. Is There a Duty to Obey the Law? Cambridge: Cambridge

University Press, 2005.

7

So, then, if we are to explain how laws create moral obligations, we will need a more

nuanced account. I suggest two criteria for a satisfactory account. First, it will be a relatively

conservative account relative to a liberal legal system. On the one hand, it will be a desirable

account only if it tells us that most areas of our existing law should be enforced: an account that

cannot justify the punishment of violations of health regulations or traffic rules, for example,

would be deficient. Conversely, it should not recommend significant expansion of legal

punishment into areas of life that political thought has regarded as being outside the province of

law, such as (non-contractual or -quasi-contractual) promises, protected free speech, etc. We can

allow our theory of punishment to recommend some legal reforms, but what is justified should

be compatible with a liberal political theory.

The second criterion is that the amount of punishment justified will be roughly

proportionate to the moral gravity of the offense. This is both relative (e.g. murder should be

punished more harshly than tax fraud) and absolute (e.g. robbery should not be punished with

amputation nor breaking the speed limit with a year in prison). Neither of these criteria are

shared by all theories of punishment, but they are necessary to ensure that our theory is both

liberal and retributivist. Departing from the first criterion means abandoning liberalism;

departing from the second means that the theory is in tension with the less controversial9

implication of Kant’s lex talionis: that criminals should not be punished more harshly than they

deserve.

With those criteria in mind, in the next chapter I will examine the moral retributivisms of

Morris, Hampton and Moore to see if they are satisfactory. In the third chapter I will highlight

9 The more controversial implication of the lex talionis I have in mind is that criminals must always be punished as

harshly as they deserve. This would mean that that the legal system is necessarily unjust in cases of clemency and

pardons.

8

the advantages of legal retributivism (as described by Fingarette, Brudner and Davis), before

moving on to possible objection, which will be covered in the fourth chapter.

2 MORAL RETRIBUTIVISM

The theories of Herbert Morris, Jean Hampton and Michael Moore are all classified as “moral”

because they attempt to derive a justification for legal punishment from moral principles or

intuitions that are not specific to the law. That is, they seek to explain legal desert as a certain

type of moral guilt that would exist even in non-legal contexts. The three theories fail to give

good justifications because of the congruence problem: they either fail to justify legal

punishment for some acts that clearly deserve it, or justify punishing some acts that do not seem

to. The sphere of punishment justified by Hampton is both too narrow and too broad, as is that

justified by Moore, while Morris’s seems simply too narrow. Hampton, Morris and Moore’s

projects could be said to be successful if they were aimed at proving that moral violations are

morally deserving of retribution, but their arguments are intended (among other things) to justify

legal retribution.10 Another, related problem that appears is that their theories do not give a

plausible way to proportion punishment to the crime.

.

2.1 Morris: Punishment as Distributive Justice

Herbert Morris (1976) conceives of the law as a system of rules that “establish a mutuality of

benefit and burden” among the members of a society (33). The benefit of these rules for each

individual is a sphere of noninterference that others do not transgress; the burden is the “exercise

of self-restraint by individuals over inclinations that would, if satisfied, directly interfere or

9

create a substantial risk of interference with others in proscribed ways” (33). When someone

chooses to violate a rule, “he renounces a burden” and “thus gains an advantage” over others

(33). Punishment of a rule-violator removes his unfair advantage, and thus “restores the

equilibrium of benefits and burdens” (34). Morris’s justification of punishment, then, is

essentially economic—it seeks to eliminate free-riders, who benefit from others’ self-restraint

while refusing to reciprocate.

According to Morris, the proper amount of punishment would depend on the advantage

obtained by each violation. However, he does not clearly explain how we are to assess the

“unfair advantage” gained by criminals that is to be removed by punishment. David Dolinko

(1991) discusses two possible answers to this question given by Morris’s defenders, neither of

which seems successful. The first sees the unfair advantage as the criminal’s satisfaction of

inclinations that others choose to restrain. (This interpretation has support from Morris’s

statement that “the burden consists in the exercise of self-restraint” [Morris 33].) Dolinko points

out that this would entail that the criminal’s advantage is “proportional to the burden of self-

restraint that others carry but that he has thrown off” (Dolinko 545). Thus, the advantage would

depend on how strongly the general population is inclined to commit the crime. This would mean

no connection to the seriousness of the crime—if people are more tempted to commit tax fraud

than arson, then the advantage gained from tax fraud would be greater than that from arson.

Since the harshness of the punishment is supposed to depend on the scale of the unfair

advantage, this would mean that tax fraud ought to be punished more harshly than arson

(Dolinko 545-6). This sort of result casts doubt on the “burden of self-restraint” interpretation of

crime’s unfair advantage.

10

Thanks to AJ Cohen for inspiring the wording of this sentence.

10

An apparently more promising explanation of how to measure the advantage gained by

criminals is given by George Sher. He contends that the benefit of a crime depends on “the

strength of the moral prohibition that has been violated” (Sher 81).

A person who acts wrongly does gain a significant measure of extra liberty: what he

gains is freedom from the demands of the prohibition he violates. Because others take

that prohibition seriously, they lack a similar liberty. And as the strength of the

prohibition increases, so too does the freedom from it which its violation entails (Sher

82).

This seems to match our intuition that the more heinous a crime, the harsher it should be

punished. However, Sher’s account is faced with a challenge: it does not seem to be the case that

every (correctly) illegal act breaks a moral prohibition. Consider traffic law—it outlaws some

acts that are morally neutral absent statutory requirements (546). For example, making a U-turn

at a traffic light when there is no risk of accident—perfect visibility, no traffic, etc—does not

seem to violate any moral obligations: the act neither harms nor risks harming anyone..

Therefore, it seems wrong to say that this particular violation of a U-turn law violates a pre-legal

moral prohibition,11 and so, under Sher’s definition, there is no unfair advantage and no

justification for punishment. At the same time, we can imagine settings in which having a ban on

U-turns is justified, and therefore, the legal system would be justified in punishing him. Sher’s

theory fails to justify punishment in that sort of situation.

Someone might defend Sher’s suggestion by saying that even in such a case, there is a

moral obligation that the criminal violates: a duty to obey the law. As mentioned before, there

are serious philosophical difficulties with a general duty to obey the law. For the unfair

advantage theory, there is an additional problem: this would entail that all illegal but otherwise

11

morally neutral acts bring the same advantage for the criminal (Dolinko 547). Therefore, all such

acts—e.g. illegal U-turns, hunting endangered animals, jaywalking—would deserve the same

punishment. The resulting system, which would punish a wide variety of acts with the same

punishment, does not seem to match the classical retributive picture of punishment that “fits the

crime.”12 So far, then, Morris and his defenders have not given us a plausible way to understand

the idea of unfair advantage that is the heart of his justification of legal retribution. Perhaps there

is some other way to make sense of it, but it is not clear to me what this might look like.

An even deeper objection to Morris’s approach is that it does not seem to be the case that

all crimes count as an advantage for a criminal. It makes sense that violators of traffic laws, tax

regulations and other sorts of cooperative schemes gain an unfair advantage: tax evaders receive

government benefits paid for by others without sacrificing any of their own wealth, reckless

drivers take advantage of others’ traffic law compliance, etc. However, in what way can we say

that a serial killer has benefited by his acts? Here, Jean Hampton puts the point very well,

The idea that punishment is simply the taking away of the advantages which rapists or

murderers have by virtue of being unrestrained presupposes that their actions (or the

consequences of the actions) are, at least in certain circumstances, inherently desirable

and rational, and that we object to them only because, if performed by everyone they

would be collectively harmful.13

11

See fn 4 p. 5 for a definition of this term. 12

A.J. Cohen has suggested to me that we might be able to distinguish between different classes of laws, with

different levels of moral prohibitions against breaking them. For example, “laws that are necessary to prevent

citizens from being harmed” would have a stronger moral prohibition against their breaking than other sorts of laws.

Cohen’s idea could be developed, perhaps, into a sort of “rule Harm Principle,” a la rule utilitarianism: when a law

prohibits a type of act that is usually harmful, breaking that law is immoral, even if the token act did not cause harm.

This principle would be subject to the same sort of criticism made against rule utilitarianism: that when the principle

that originally justified the rule is equally served by breaking that rule, why should the rule hold any normative force

for us? 13

Jean Hampton, “A New Theory of Retribution,” 385.

12

Indeed, from the virtue ethics perspective, even if these sorts of criminals went unpunished they

would probably have incurred a net loss—the harm done to their own character outweighs any

gains in utility from indulging aggressive desires. There is something disturbing about thinking

that indulging evil desires constitutes a benefit for criminals.14 Since the unfair advantage

account does not seem plausible for at least one broad area of crimes, it fails to provide a good

justification for retributivism. Morris’s notion of unfair advantage cannot be applied to all

crimes, and fails to provide a defensible way to fit the punishment to the crime.

2.2 Hampton: Vindicating the Victim’s Value

Jean Hampton (1991) contends that retribution is justified in order to nullify criminals’

false claims about the value of victims. In committing a crime, Hampton believes, a criminal

displays a lack of respect for the victim and asserts that he is superior to the victim. Punishment

then denies the criminal’s assertion of superiority over the victim by making the criminal

experience “submission to the punisher” (Hampton 399). This usually means inflicting suffering,

but non-painful methods can also be adequate if they count as defeats of the criminal. Hampton

endorses the lex talionis, in a modified form, as a way to specify the appropriate sort of

punishment: “to inflict on a wrongdoer something comparable to what she inflicted on the victim

is to master her in the way that she mastered the victim.” Now, says Hampton, “the score is

even” (401). She holds that punishment is the only way to “counter the appearance of the

wrongdoer’s superiority and thus affirm the victim’s real value” (402). The motivation behind

retribution is fundamentally “to deny the wrongdoer’s false claim to superiority and to assert the

victim’s equal value” (402).

14

Cf. Plato in Gorgias and The Republic

13

Dolinko points out that Hampton makes the same sort of mistake for which she criticizes

Morris: she fails to connect punishment of a criminal to “that which makes his conduct

[emphasis mine] wrong” (Dolinko 551-552). According to her, the feature of a crime that

deserves punishment is that it is a false moral assertion—the criminal expresses a message of

superiority over the victim. Before getting to Dolinko’s criticism, I think it worth noting that

Hampton’s model of crime as a wrongdoer demeaning a victim does not seem to apply well to

important areas of the criminal law. There are many crimes that lack a distinct victim, such as

embezzlement from a large corporation, driving without a seat belt and hunting without a license.

All of these crimes can have negative effects on others (and so prohibition clearly seems

justified) but there is no distinct victim in the usual sense of the word: the effects are dispersed

over, respectively, stockholders, health insurance policy holders and those affected by the local

ecosystem. It would be dubious to describe the man driving without a seat belt as claiming moral

superiority over the others in his insurance pool, or the embezzler declaring her moral superiority

over thousands of stockholders. Even if Hampton’s argument justifies punishment of crimes with

distinct victims, it becomes implausible when extended to many rightly-criminalized acts.

However, Dolinko identifies a different problem with her argument that affects even

crimes with distinct victims. This is that we do not normally regard rebuttal of false claims of

superiority to be a proper function of the legal system. There are many sorts of ways—publishing

a book, setting up a web site, holding a rally—through which a person or group might proclaim

superior moral worth over some other person or group, but against which we would not demand

the legal system to take action (551).15 If the message of another’s inferiority were the core of

criminal desert, it would seem that any assertion of that message, through a crime or some other

medium, should deserve some sort of punishment. However, what matters for law is how a

14

person’s moral worth is denigrated: it must have or threaten some actual effect—harm, wrongly

interfering with the other’s freedom, etc—for it to deserve punishment.16 Hampton’s approach,

then, is unable to explain why the state should punish crimes in particular, as opposed to all

messages of moral inferiority.17

To be fair to Hampton, she does intend for her theory to be an explanation not only of

legal retributive punishment, but the idea of retribution in general. Thus, she says in a footnote

about Herbert Fingarette’s theory of retribution,

Retributivists such as Kant have taken retribution to be a deeply moral notion… I am

inclined to think [Fingarette’s] account might be right as part of the reason a legal system

punishes, but is wrong as an account of retribution [emphasis mine]. My account of

retribution tries to explain its moral core, which I believe a variety of institutions,

including not only the law but also families and universities, make use of in pursuit of

both and non-moral objectives (400).

Thus, an early example she uses to characterize retribution is that of a child who desires to defeat

a bully who has victimized him (401-402). Hampton wants to encompass both personal and legal

punishment with her definition of retributive punishment as “the defeat of the wrongdoer at the

hand of the victim (either directly or indirectly through an agent of the victim, e.g. the state) that

symbolizes the correct relative value of wrongdoer and victim” (398). The problem with this, I

would suggest, is either that Hampton either fails to recognize the dissimilarities between

personal and legal retribution, or she does not consider punishment of crimes without victims to

15

We can judge such expressions of moral superiority to be evil, but not worthy of legal action. 16

For example, the tort of slander requires that the statement be damaging to the person’s reputation, not merely

false. A neo-Nazi group distributing pamphlets that vilified some person simply for her Jewish ancestry would be

making false moral claims about her, but this would not count as slander from a legal point of view. 17

AJ Cohen has suggested that Hampton could simply accept this and endorse the legal punishment of all false

claims of another’s moral inferiority. This would remove the force of my critique, but seems to be a self-inflicted

reductio ad absurdum.

15

qualify as retributive punishment. The first possibility is a serious mistake; any definition of

retribution that could encompass both a child seeking to defeat a bully and the state punishing

unlicensed fishing would have to be a relatively thin one, perhaps not much thicker than the idea

of people deserving punishment.18

Although there is not clear evidence that Hampton regards only the punishment of

demeaning crimes to be retribution, this interpretation would make her theory more credible. In

that case, her explanation could play a role in determining the type and amount of punishment

appropriate for some criminals. That is to say, whether an act demeans a person could plausibly

be a consideration in the legislative and sentencing stages. It might well be the case that when an

act demeaned a victim, the judicial system should make an effort to see the criminal punished in

a way that helps to publicly “vindicate” the victim’s moral value. Still, as has been shown in the

above discussion, even in those stages it is neither necessary nor sufficient to justify punishment.

Some crimes that ought to be punished do not demean a victim, while some false moral claims

about others are not deserving of legal punishment. In the area of legal punishment, then,

Hampton’s argument seems at best suited to act only as a contributory factor in considerations.

However, it does not seem to play any explanatory role in the institutional justification of legal

punishment. At best, her theory is of limited use for giving a justification of legal punishment.

18

See John Cottingham in "Varieties of Retribution," Philosophical Quarterly 29 (1979): 238-246 for an analysis of

the different senses in which “retribution” is used by philosophers discussing punishment. Hampton’s bully example

fits well into the satisfaction theory (punishment of a criminal is justified when it brings satisfaction to those who

have been wronged by that criminal). James Fitzjames Stephen puts forward a slightly different view, saying that the

criminal law “regulates, sanctions and provides a legitimate satisfaction for the passion of revenge” (A General View

of the Criminal Law of England: 99). A full critique of this view would take us too far afield, and so I will limit

myself to the observation that reducing legal retribution to revenge is an unattractive view.

16

Section 3. Moore: Best Explanation for Our Intuitions

Michael Moore’s justification of retributivism takes a notably different approach from those of

Morris and Hampton. Rather than attempting to identify a single immoral feature of crimes (such

as unfairness or defaming the victim), Moore employs a coherence strategy. He argues (see Ch 2

of Moore) that we have retributivist intuitions when faced with particular crimes. Moore relies

on extremely evil crimes, such as those committed by Steven Judy, who raped and murdered a

woman and drowned her three children (98). Cases such as these, says Moore, elicit emotional

and cognitive responses in most people that can be characterized as retributivist—the criminal

ought to be punished even when the punishment is unnecessary to produce some result, such as

deterrence or incapacitation (99). From there, he uses “this psychological fact as the basis for an

inference to a moral fact, viz., that there is such a thing as retributive justice and that we should

design our penal institutions so as to realize this kind of justice” (104). Moore’s argument, then,

is that we have reliable intuitions that certain crimes deserve to be punished, and those reactions

are best explained by “the truth of retributivism” (109).

Moore does not do much to prove that retributivism is a more successful explanation for

our intuitions than other theories of punishment. He spends some time to show that retributivism

does better than the mixed theory19 of punishment, but the majority of his argument is concerned

with defending the legitimacy of our condemnation of criminals against what he calls a

Nietzschean argument (that retributivist intuitions arise from the negative emotions Nietzsche

labeled ressentiment). We will leave aside, however, the question of whether non-retributivist

theories of punishment are more successful at explaining our intuitive responses and instead

examine whether his argument falls victim to a congruence problem.

19

That is, a theory that punishment ought to be inflicted only in cases when both the criminal deserves it and the

punishment brings a net social gain.

17

In making his argument, Moore limits his examples to particularly heinous crimes:

murder, rape and genocide. This is understandable, for these are the sorts of cases that come the

closest to universally eliciting a retributivist response. However, it might be the case that we

react so strongly to these acts not because of their illegality, but because of independently evil

features. That is, our intuition that Steven Judy deserves punishment comes not because his acts

were legally prohibited, but because it is morally wrong to rape and murder an innocent woman

and to kill innocent children. This possibility is supported by the following thought experiment.

Imagine a country where women were forbidden to drive cars without a husband or a male

relative, and the statutes specified that women were removed from legal protection if they drove

alone. Would our intuition that Judy deserves punishment be any weaker if he had committed

rape and murder in that country? The fact that his acts were prohibited by a statute does not seem

to be a significant source of our moral outrage.

Conversely, let us consider crimes in which there is no pre-legal moral obligation to

abstain. Consider, says Dolinko, a person who jaywalks in the early morning across a deserted

street, where no cars are traveling. It seems unlikely that many of us would experience

indignation towards the jaywalker or have the intuition that she deserves punishment (554).

These two thought experiments suggest that the legality of an act plays little, if any, role in our

intuitive judgments regarding desert. Rather, these intuitive judgments seem to be better

explained by a principle such as, “Harm deserves to be punished, whether that act was prohibited

by statute or not.”20 Moore’s coherence strategy does not succeed at providing a broad basis for

legal retribution—one that supports the punishment of acts against which we have no pre-legal

20

Note that Moore argues that a principle of retribution is the best explanation for our intuitions. If our intuitions are

better explained by something other than the moral principle “illegal acts ought to be punished,” his argument for

legal punishment is ineffective. Nor does it prove even the weaker claim that crimes causing harm deserve

punishment, since our intuitions about punishment don’t seem to be any stronger if a harmful act is illegal.

18

moral obligation, such as driving on the wrong side of the road late at night, “jaywalking, trading

on inside information, or giving away ducklings to promote a store sale” (557).21

Moore responds to Dolinko’s argument (that Moore’s strategy does not support the

punishment of all legally prohibited acts). He mentions but rejects the possible argument that “all

criminal laws—whether prohibiting only slightly bad acts, morally neutral acts, or even morally

good acts—obligate citizen obedience, at least in a reasonably just regime” (Moore 184). Rather

than making this sort of claim, however, he instead says that the examples of acts claimed by

Dolinko to be morally indifferent (absent the law) are, in fact, morally wrong. Moore seems to

have the better of the argument on two of these: insider trading harms the financial system, and

giving away ducklings in front of a store risks them falling into the possession of a careless

owner (185). However, against Dolinko’s other two examples, Moore’s explanation for their

immorality is a non sequitur: “[It is morally wrong to drive] on the wrong side of the road once a

statute has been put in place solving the co-ordination problem presented by crowded traffic

conditions.” How does this show that driving on the wrong side of the road when there is no

traffic is morally wrong? (185).22

To see what Moore is thinking when he says that the two late-night road crimes discussed

so far are morally wrong, let us examine the general principle that appears to motivate his

justification for imputing immorality to the acts. He states this as,

Even acts that are morally neutral become wrong when the criminal law prohibits them, if

the law’s prohibition solves either a co-ordination problem or a prison’s dilemma that we

21

Dolinko (557) also points out that we experience no retributivist intuitions when considering violators of morally

evil laws (such as a statute that forbids giving food to the homeless). He considers this to be a weakness of Moore’s

approach. Here, Dolinko is setting an unreasonable challenge for any retributivist. Even if one goes down the legal

retributivist route I advocate, there is nothing amiss with holding that a statute making immoral demands imposes no

moral obligations. To put it another way, the prima facie moral obligation of law is overruled when a statute

conflicts with pre-legal morality.

19

have an obligation to solve. Thus, many of what are called ‘regulatory offences’ may

nonetheless prohibit actions that are morally wrong (186).

Before passing a law requiring people to drive on only one side of the road, driving on the other

side was morally neutral. However, after the law is instituted to solve a coordination problem, it

is immoral to drive on that other side. So far, so good. However, this argument still cannot do the

work for which Moore employs it. It is able to show that most offences of a particular regulation

are morally wrong, but it cannot show that each and every offence is. The types of laws

discussed by Moore have power to create moral obligations because they generally work to

prevent a hurt, such as traffic accidents. However, such a law will end up prohibiting some

instances of the act that do not risk hurt, and so do not count as immoral. This is the case even

for an ideally-crafted law, because of the clarity required for law to be effective. As statutes

become more flexible and vague, they also become more difficult for citizens to obey: citizens

find it harder to know whether they are acting in accord with the law. Still, we have the intuition

that these laws ought to exist, and so we are led to say either (1) that some acts must be punished

even when they are not, pre-legally, morally wrong or (2) that regulatory offences should not be

punished when they are not, pre-legally, morally wrong. (1) entails that Moore’s intuitions

cannot justify the enforcement of some justifiable statutes; (2) entails complications and

unpredictability in the enforcement of statutes.

To illustrate, let us return to the case of the jaywalker. If he was crossing at 4:00 A.M., in

no risk of being hit by a car and fully aware of the absence of traffic, his particular act did not

contribute in any conceivable way to “either a coordination problem or a prisoner’s dilemma.”

Since this particular instance of jaywalking was in no way dangerous or harmful, it is unclear

22

Moore says nothing specifically about the jaywalking example, but we can easily extend his discussion of the

driver to it.

20

what would make his act immoral, besides being contrary to a statute. “Fine,” a defender of

Moore might say, “but this is simply a poorly-crafted law. If we allow for the right sort of

exceptions, we can ensure that only immoral jaywalking violates the statutes.” The two ways to

do this would be either to introduce some flexibility clause (e.g. “jaywalking is not prohibited

when there is no risk of collision”) or specific exceptions (e.g. jaywalking is legal after a certain

hour). The drawbacks to the vague flexibility clause are the lack of clarity23 introduced to the

decision-making of both enforcers and citizens, and the inevitable accidents brought on by

foolish jaywalkers. Similarly, if the exceptions are more specific, then we would need a quite

complex list of exceptions to ensure that jaywalking would be prohibited if and only if it were

dangerous. In reality, it seems unlikely that even the longest piece of legislation could ever give a

clear, specific list of conditions in which jaywalking is morally unproblematic.

All of this discussion is intended to show that Dolinko’s basic point is correct: it is

incorrect to think that all violations of the law (even when the statutes are well-crafted) violate

moral obligations. Our intuitions about moral desert do not map cleanly onto legal desert, and so

Moore’s argument for retributivism falls victim to the same sort of congruence problem as

Hampton’s and Morris’s. If we are to find a retributivist justification for punishment, we need

one that does not rely on our ordinary moral intuitions or a single moral principle. Hampton,

Morris and Moore’s projects would be successful if they were aimed at proving that moral

violations are morally deserving of retribution, but their arguments are intended (among other

things) to justify legal retribution. The project of describing violations of the law, even some

idealized legal code, as a certain species of moral violations runs aground when we consider

some justifiably illegal acts. These violations of the law are difficult to describe as moral

23

See Fuller’s brief but insightful discussion of the surprisingly complex relationship between clarity and vagueness

(The Morality of Law 64-65).

21

violations without relying on the notion of a general duty to obey the law. The question we face

is whether it is possible give a morally satisfactory argument for legal punishment without

relying on the idea that all violations are moral wrongs. This is the project of legal retributivism,

which will be examined in the next section.

3 LEGAL RETRIBUTIVISM

I hope that the preceding analyses have shown how the most influential moral retributivists have

failed to explain how the immorality of illegal activity (independent of their criminality) justifies

punishment without also implicitly justifying punishment in cases of many legally allowed acts.

It is my belief that all such efforts are ultimately doomed to fail, for even the ideal legal code

would have to punish some acts that would otherwise be morally neutral. Rather than explaining

penal desert on the basis of the criminals’ moral desert, legal retributivism defines penal desert as

the violation of the law under certain conditions.24

For moral retributivism, the key question is,

“Why do criminals deserve punishment?” Legal retributivism begins instead by asking, “When is

the law justified in punishing violators?” I will discuss the work of two legal retributivists:

Herbert Fingarette and Alan Brudner.

24

Recently, Michael Davis (2009) has given a significantly different definition of the distinction between legal and

moral retributivism (which he prefers to call “conceptualism”). For Davis, the difference is that “legalistic theories

assume that (justified) punishment is a practice (largely) confined to (relatively just) legal systems” (92). This is a

broader sort of definition than the one that I employ, allowing him to include Herbert Morris in the legal camp.

Davis’s distinction seems less substantial to me, since any moral (in my sense) retributivist might hold the principle

of legality to be a necessary part of legal punishment for reasons independent from her justification of retribution.

We can easily turn Hampton and Moore’s theory into “legalistic” retributivism in Davis’s sense simply by

stipulating that legality is necessary for legal punishment. Moore gives a weaker version of this, saying that the

value of legality means that we usually should punish only illegal acts (Placing Blame 186-187).

22

3.1 Fingarette’s Conceptual Account of Punishment

Although he does not identify his theory as legal retributivism, in “Punishment and Suffering”

(1977) Herbert Fingarette makes a powerful legal retributivist proposal. Fingarette leaves some

questions to be answered, but he gives a unique theory—what Davis calls the “institutional”

justification of punishment. He describes his goal as “to show how the necessity for punishment

is independent of moral justification,” but instead is a “necessity internal to law” (503).

Fingarette professes “a concern with law as institution of government…rather than as merely a

set of abstract conceptions, or a system of rules or principles” (503).

As an institution of government, law has force, i.e. is “enforceable and enforced” (504).

This does not mean moral authority, but actual coercive power over the governed. He sidesteps

the scholarly debate over the exact conceptual relationship between power and law by pointing to

the wide consensus that law must be able to exercise power if it is to actually govern (504).

Legal power is not primarily physical force, but power over a person’s will: it exercises power

over people who obey it and never experience punishment. This means that persons must possess

the ability to will against the law, or the presence of law would be pointless (504-505). For law

to rule a society, it must be able to exercise its power to forbid people from violating its

requirements (505).

With this understanding of power as necessary to law, Fingarette explains, “The [legal]

requirement has force even in relation to the non-complying act. We have the concept of

enforcing the requirement, even after the act” (506). When the requirements of law have been

violated, the legal system cannot stand idly by—to do so would mean that it had not truly

imposed requirements. Instead, it must, as much as possible, erase the effects of non-compliance,

i.e. make the situation how it would have been had the law been followed. Therefore, courts act

23

to force criminals to make reparation for wrongful damages—returning stolen property, paying

for financial losses and medical costs, etc. However, although reparation makes amends for the

damage done to a victim, it does not address the fact of non-compliance: this can only be done

by punishment (508). Fingarette does not give a defense of this point, but it seems sound. For

example, let us consider a driver who runs a red light, and in doing so damages another person’s

car. If the driver’s only sentence were to pay compensation to the victim, his recklessness per se

would not be punished; this sentencing would imply that if he had not damaged the other car, his

defiance of the law would ought not be punished. Here Fingarette returns to the concept of law as

power over the will. When a person commits a crime, she wills against the law’s requirement.

Punishment is the act of humbling the criminal’s will, in response to her earlier defiance.25

If a

person willingly defies the requirements of the law, the legal system must make that person

undergo something against her will.26

Fingarette, then, seems to conceive of punishment and

reparation as two expressions of the impulse of law to enforce requirements post facto,

distinguished by the party that the criminal has wronged.

Fingarette leaves some details to be desired as to how punishment constitutes a

restoration of justice, but I will do my best to expand his claims. Legal retribution cannot truly

erase the noncompliance of the criminal, as Hegel claimed, or even repair it, which Fingarette

acknowledges (513). We could say, then, that punishment “offsets” rather than “erases”

noncompliance by inflicting something undesired on the criminal. If this seems a problem for

25

A.J. Cohen has pointed out to me that court-ordered reparation, since it forces criminals to do something against

their will, seems to be “humbling the will,” which would make it fulfill Fingarette’s definition of punishment. Cohen

has a point here. At times Fingarette specifies his topic as “retributive punishment,” but at other times he refer to the

same concept simply as “punishment.” A better classification would be to see legal retribution and reparation as two

distinct forms of punishment. As previously mentioned, there are two aspects of a harm-causing criminal act: the

harm it caused and the defiance of the law. Reparation (which includes both compensation and restitution) addresses

only the first aspect; retribution, only the second. Cohen’s objection

24

Fingarette, it is worth pointing out that other responses from the legal system are similarly

incapable of true erasure. Reparation cannot restore some harms done to victims, such as

emotional damage, permanent medical conditions and death, and even some material losses (e.g.

possessions that have historical or sentimental value). Courts order restitution to restore the

victim to her previous condition as closely as possible, but only some aspects of damage can be

truly reversed through the legal system. Monetary awards do not erase “pain and suffering,” but

they help to balance out the harm done before. Recognizing the limited power of the law in

repairing both losses and noncompliance might help to head off skepticism towards Fingarette’s

account of punishment.

In his overall approach Fingarette is radically different from the moral retributivists

discussed, who seek justification for punishing criminals in principles independent of the law.

Fingarette, in contrast, holds that law—requirements on individuals—must punish violations, or

it would not really be law. “It is part of what it means for the law to exercise its power over us, to

require things of us, that those who don’t of their own will comply are normally punished” (510).

It is important to note that by “humbling the will” Fingarette does not mean the criminal’s will

being led to comply with the law in the future. He means that the criminal is forced to suffer

something against his will specifically for violating the legal requirement (510). As to the

quantity and type of punishment, Fingarette rejects the view that punishment should be

determined only by the severity of the moral wrong. Where Morris says that the “unfair

advantage” from a crime is the measure for deserved punishment, and Hampton says that the

punishment for a crime must be equal to the disrespect shown to the victim, Fingarette thinks the

proper punishment depends on the gravity of the legal requirement as laid down by lawmakers,

26

This account of punishment has some similarities with Hampton in its focus on humbling the criminal’s will.

However, rather than doing this for the sake of the victim’s dignity, for Fingarette, legal punishment is only

25

who consider other facts (“policy and politics, technical considerations related to the field of

activity covered by the law, and considerations internal to the legal system”) as well as moral

judgments (512).

Wendell Stephenson (1990) considers a criticism made by Oliver Johnson (1985) that

Fingarette’s argument depends on the premise that criminals are capable of obeying the law but

will to defy it. If something different were generally true about criminals, then enforcement

could require something different: e.g., if criminals have a “sickness” or other inability to follow

the law, the state ought to treat rather than punish them (Johnson 159). Therefore, Johnson’s

objection says, the concept of law does not entail punishment. This criticism has a point, but

Fingarette’s basic position can be salvaged with a slight clarification: when a criminal can obey

the law but chooses not to, punishment is the only proper enforcement of the law.27

Any other

response to such a criminal would mean that the law had no power over that criminal’s will

(Stephenson 230).

Fingarette recognizes that his argument shows that law requires punishment but does not

give a moral justification for it. He sees this as a significant task since punishment involves

forcing something on a person against his will, and so is an evil (he rejects the idea that because

punishment is in response to that person’s evil it constitutes a good) (513). 28

So, he concludes

that giving a moral justification of punishment requires proving that “law, as a governing

concerned with the criminal’s offence against the law. 27

Of course, this presumes that there are criminals who fit this description. A more accurate statement would be

along the lines of, “if there are criminals who could obey but choose not to, then if they choose not to, punishment is

the only proper enforcement of the law.” (Thanks to A.J. Cohen for this phrasing) 28

This line of thought has earned the response from Bill Edmundson that Fingarette’s theory does not seem to truly

be retributivist. Since it justifies punishment on the basis of its necessity to law, Edmundson says the theory seems

to be only “instrumentalist.” At times, Fingarette’s discussion (such as when he calls punishment a “necessary cost”

of law) could lead to this understanding. However, Fingarette is not arguing that punishment is something different

from law that must exist in order for law to be effective. Rather, he argues that punishment is in some sense internal

to the concept of law. If law exists, then so does punishment, assuming that there are lawbreakers.

26

institution, is morally justified” (513). Fingarette does not take up this task, but points in the

direction of another legal retributivist when he says,

The exercise of the power of law over our will…does embody respect for our freedom

and for our status as choosing beings. The point is that law does leave us free to do much

as we will—provided that what we will also conforms to the requirements of law. In this

way a system of law, thought it constrains the will in its direct import for that will, can

allow an enormous residual range of freedom (514).

3.2 Brudner’s Purpose of Laws

Alan Brudner in Punishment and Freedom, like Fingarette, argues for a legal retributivist

justification of punishment. It is a far more comprehensive treatment of punishment, though,

giving attention to nearly every issue in the philosophy of criminal law. Although there is much

more that could be said about Brudner’s theory, I will focus on how his explanation of legal

desert can justify punishment for both true crimes and regulatory offenses. Brudner gives a

thorough account of legal retribution, particularly the institutional and judicial senses of

justification, that avoids the flaws found in the moral retributivist approaches. His theory is able

to explain the punishment of many acts that are not well described as immoral and also to avoid

justifying radical expansion of punishment into areas of legally allowed immorality.

Brudner begins with the idea that punishment can only be right if it “can be conceived as

self-imposed by the sufferer by virtue of his choice to do what he did” (2). This is an apparently

paradoxical claim, since something must be done against the choice of a person for it to count as

punishment. He explains this with a hypothetical social contract model similar to Rawls’s

original position in A Theory of Justice. Brudner relies on the notion of the Agent: a person who

27

has no subjective ends, and therefore is concerned only with protecting her “freedom to choose

and pursue material ends” (4). In this thought experiment, the ideal Agent acts as a representative

of actual persons for giving consent to a particular legal system, including its rules on

punishment. Since the Agent would have no subjective ends, it would endorse laws that work to

protect human freedom. Freedom receives this privileged status within the thought experiment

because it is a value shared by all branches of liberalism and, unlike other characteristically

liberal goods, it is “an interest that is necessarily rather than contingently shared” by all persons

(22). If an act of punishment is affirmed by the Agent as upholding freedom, Brudner says, it

counts as “self-willed” by a criminal. By considering the interests of the ideal Agent, we can

determine whether punishment of actual criminals is justified.

Of course, the punishment justified by Brudner’s Agent depends a great deal on the

conception of freedom being considered by the Agent. Brudner discusses two possibilities, which

he calls “formal agency” and “real autonomy” (5).29

Formal agency is the “capacity to have

chosen otherwise than one did” (5). To have formal agency in an act, it does not matter what

motivates the person to act (appetites, habit, rationally chosen goals, etc.) so long as that person

is free from the actual coercion of others. Under this conception of freedom, the Agent would

endorse punishment in cases where a criminal freely (i.e. as a formal agent) chose to “pre-empt

the free choice of another” (5). Formal agency imposes two conditions, then: the criminal must

have chosen to do some act and the act must be an interference with or destruction of another’s

capacity to choose. Both of these conditions must be fulfilled for the conception to justify

29

He also discusses a third called “communal solidarity,” but this conception plays a much smaller role in his theory

and is not important for our purposes.

28

punishment. This set of acts roughly corresponds to the legal category of true crimes,30

and so

Brudner argues that consideration of formal agency is the foundation for true crimes.

The second conception of freedom—real autonomy—requires that a person act from self-

determined ends. In formal agency, a person acting on the basis of ends that arise by “instinct or

by immediate biological need” would count as free, but not under real autonomy (5). A person

must exercise his “capacity to form and realize a life plan reflecting a self-conscious conception

of [his] good” to be free in this sense. To sum up real autonomy,

An agent is free only if it acts from ends that are self-authored and only if the

vulnerability of its life plans to adversity is limited by law to a vulnerability to accidents

it could have foreseen and avoided (5).

The punishment justified by this conception of freedom differs from that of formal agency in two

important ways. First, real autonomy entails a wider range of protections for persons. To be able

to select and pursue their own ends, persons must have a certain amount of protection for their

welfare: physical needs, economic opportunities, etc. To protect real autonomy, the criminal law

must prohibit some acts that do not violate a person’s formal agency—her simple capacity to

choose—but do threaten her ability to live according to her own plans. Second, real autonomy

sets a lower standard for punishment than formal agency. To be culpable for violating a law

under real autonomy, it is not necessary that the criminal be intentional or reckless in committing

the act (173). It is only necessary that the criminal “could have foreseen and avoided” the

consequences of his act—what the law calls negligence (5). Real autonomy, Brudner says, is the

conception that justifies the legal category of public welfare offences, or regulatory offences. He

uses the terms interchangeably, but it is better to say that public welfare offences are a particular

30

In Anglo-American legal thought, prohibited acts against persons, property, the state and administration of justice,

when done with an intentional mental state, are classified as true crimes (Brudner 8-9).

29

type of regulatory offence. Therefore, I will use the term “regulatory offence” unless the statute

is particularly directed at threats to the public.

What makes Brudner’s theory remarkable is his response to these two conceptions of

freedom. Rather than enshrining one as a comprehensive framework for the legal system, he

recognizes shortcomings to each. Formal agency’s sole focus on freedom from external coercion

excludes as ends things that are necessary for all persons, such as life and health (27). Formal

agency would not prohibit any act unless (a) it is intentionally or recklessly committed and (b) is

directed against another person’s capacity to choose. Thus, formal agency has nothing to say

about regulations to protect public health, which fail condition (b) (e.g. polluting water or air

does not constitute a denial of another’s agency), or laws that penalize negligence, which fail

condition (a). If formal agency is our complete understanding of freedom, any consideration of

these laws would occur in a “normative vacuum,” subject only to cost-benefit analysis (57).

Since real autonomy requires that a person be able to choose and pursue her own ends, it

protects a broader conception of goods than formal agency. It is easy to imagine persons who

have formal agency, yet lack real autonomy. For example, a person driven by poverty and lack of

education to work in a dangerous, abusive sweatshop would be judged as free under formal

agency, but not real autonomy. To protect her freedom, real autonomy would provide support for

statutes to prohibit unsafe working conditions, protect educational and employment

opportunities, etc. Furthermore, since real autonomy includes the ability to pursue one’s own

ends, it gives justification for statutes to protect goods and activities that are widely desired, such

as statutes to set up and manage public parks.

The previous paragraph might lead one to think that real autonomy is, on its own, a

satisfactory framework for law—that it is sufficient to cover the acts prohibited by formal

30

agency, plus threats to welfare. However, real autonomy cannot fulfill this aspiration. Since most

violations of formal agency include setbacks to welfare, real autonomy frequently does overlap

with formal agency. However, real autonomy cannot justify punishing harmless acts that still

violate agency, such as a doctor administering a beneficial treatment to a patient under anesthesia

without consent. This act would not harm the person’s welfare; in fact, it would improve the

patient’s health, allowing her a greater chance to live according to her own conception of the

good. What we see, then, is that neither conception of freedom is able on its own to justify a

plausible sort of criminal law. One response to this problem could be to conclude that we need to

find an entirely different conception to justify criminal law, but Brudner instead argues that the

two conceptions are both necessary for our law, and so form a “complex unity” (8).31

Brudner’s main reason for why we ought to accept the existence of two conceptions of

freedom underlying the law appeals to the traditional distinction in both Anglo-American and

European legal systems between two categories of legally prohibited acts—true crimes and

regulatory offences. True crimes are when a person preempts, interferes with or destroys

another’s capacity for choice, through physical force or threats of force (172). Brudner also

extends this category to interferences with public institutions that protect rights of agency, such

as treason against the state and subversion of the legal system (57). Regulatory offences, on the

other hand, threaten goods that are necessary either for persons to be able to select and pursue

ends (called “agency goods,” such as food, medicine and clean air) or to satisfy subjective,

commonly held ends (such as game animals—hunting is not necessary for life or even

universally desired, but it is necessary to fulfill many persons’ desires). Because Regulatory

31

Brudner does not give a decisive argument for why we ought to combine the two conceptions, rather than seek a

third. His main reason appears to be that there is a commonly made distinction between true crimes and regulatory

offenses (8-11), and that this distinction is best explained by the existence of two conceptions of freedom within the

31

offenses have a lower standard of liability than true crimes—negligence counts as fault—the

category includes many of the acts to which the theories of Hampton and Moore have problems

imputing immorality. True crimes require intent, recklessness or willful blindness for culpability.

The classification for acts that cause physical harm or death to a person depends on the

criminal’s state of mind. Thus, reckless manslaughter counts as a true crime, while negligent

manslaughter is considered a regulatory offense.32

Although both are interferences with a

person’s capacity to choose, only when committed recklessly or intentionally does it constitute a

choice to disregard that other person.

Brudner argues that each category of prohibited acts is primarily governed by one

conception of freedom: true crimes by formal agency and regulatory offences by real autonomy.

Note the use of “primarily,” though: the other conception plays a secondary sort of role in each

category. Real autonomy’s considerations of welfare do not determine whether a true crime

occurred, but they do influence the amount of punishment that is justified. Assault can occur

without harm being done to the victim and always deserves punishment, but the greater the harm

caused, the greater the amount of punishment given to the offender (10). Similarly, for the area

of welfare offences, formal agency plays a secondary role in determining the severity of

punishment. Threatening goods necessary to live autonomously (such as health) generally

deserves more punishment than threatening goods necessary to subjective ends (like wildlife

populations, the stock market, etc.).

law. It should be admitted that it is at least possible that some other conception of freedom could be articulated that

could account for the true crime/ regulatory offence distinction.

32

3.3 Advantages of Legal Retributivism

I will now discuss how legal retributivism avoids the problems faced by moral retributivism. The

first problem is situations in which immorality and legal prohibitions do not overlap (what I have

called the congruence problem). Since legal punishment requires illegality, dealing with immoral

acts that are not legally prohibited is not a dilemma for legal retributivism. Legal retributivists

have no difficulty with saying both that an act is immoral and that the legal system ought not

punish the act. There are some types of acts that are immoral, yet with which the legal system

should not concern itself. Of course, if the legal code were mistaken in allowing the act, then the

legal retributivist would say that the statutes need revision, but that the legal system should not

punish acts. This is in contrast to moral retributivism, which, as shown in Chapter 2, tends to

imply that immoral but legal (either correctly or incorrectly so) acts ought to be punished. The

best response that moral retributivists can give to this problem is to introduce a principle of

legality33

(the legal system should not punish acts that are not prohibited by statute). However,

this principle is no way a necessary or even natural part of moral retributivism: it adds nothing to

the internal coherence of the theory, and even stands in tension to the general force of the

argument. For example, Moore says that the principle of legality has some normative force, but

that in some cases of great immorality, legally allowed immoral acts still ought to be punished.34

For legal retributivism, on the other hand, the principle of legality is an implication, not an

optional addition that causes conflict.

32

The issue of strict liability is mentioned in Chapter 4, Sec 1 (p. xx) 33

Such as Michael Moore in Placing Blame (186-187) 34

Ibid. 187. Moore uses the Nuremberg trials of Nazi leaders as his example here. However, saying that those trials

violated the principle of legality assumes that the crimes of the Nazi regime were truly done by law, which depends

on a certain sort of legal positivism. Other theorists, such as Fuller (1958), have given justification for punishing the

Nazis without characterizing it as illegal punishment. Either way, much of the theoretical problems in the Nazi case

come from the widespread corruption of the German legal system, which was so systematic that it is a reasonable

question whether there was any genuine law at all under the Nazi regime. In more healthy legal systems, Moore’s

willingness to have legal punishment for acts not forbidden by law would become more problematic.

33

The converse situation has been covered in-depth by this point: cases where the law

prohibits acts and yet it is difficult to describe the criminal as behaving immorally. Negligently

causing harm can only be described as immoral in a much weaker sense than intentionally or

recklessly causing it. Acts that violate justified laws but avoid excessive risk of harm to others,

such as the person jaywalking on a deserted road early in the morning, do not seem to be

immoral under any principle besides the dubious general duty to obey the law. Legal desert in

these cases is better explained on non-moral grounds: that the criminal law is justified in

coercing persons who violate a statute that generally works to protect agency and welfare.

The second problem identified in moral retributivism had to do with how to correctly

measure the amount of punishment for a specific crime. Here, someone skeptical of legal

retributivism might find it wanting, as it does not give any single principle to explain the

measurement of punishment. For example, Fingarette says,

They [legislators] establish, as part and parcel of the legislative act, how grave the

requirement is to be, and it this that determines, in turn the gravity of the offence against

that requirement. The graver the legislators mean their requirement to be, the graver the

punishment. (512)

In the next chapter, I will examine how a legal retributivist would measure punishment, and

consider other objections to Fingarette and Brudner’s versions of legal retributivism.

4 OBJECTIONS

Now that legal retributivism has been explained, I will consider three likely objections to the

theory. Two objections to legal retributivism are related to the legislative aspects of punishment.

34

The third is centered on the institutional sense of justification, but has implications for the

legislative and sentencing aspects as well.

4.1 Punishment of morally neutral acts

One objection to legal retributivism could arise from Brudner’s downplaying of moral desert,

which might seem to imply that the state is justified in punishing people who have done nothing

morally wrong. It would be strange for a theory to have such a gap between moral obligation and

justification of punishment. This objection would presumably be directed against Brudner’s

explanation of regulatory offences, since, as he defines them, true crimes,—intentional or

reckless interference with or destruction of another person’s autonomy—clearly constitute moral

wrongs.35

Whether we have an additional obligation when a true crime is prohibited by the law—

e.g. in addition to the universal duty to refrain from murder, also an obligation not to break the

law against murdering—is unclear, but by violating another’s autonomy these criminals have

already violated a moral obligation.

Whether it makes sense to describe regulatory offences as immoral is more complex.

Brudner does not deny that most of these offences are “morally blameworthy;” he argues only

that the moral blameworthiness of regulatory offences is not reason for them to be punished

(176). Acts fall into the regulatory offence category, rather than true crimes, for two reasons:

either a lower level of culpability or the nature of the act (or both). Acts that interfere with

another’s autonomy, but are committed negligently (rather than intentionally or recklessly), seem

to count as morally culpable. A driver who injures a pedestrian negligently has, by definition,

failed to exercise the amount of care appropriate to driving a car, and would be apt for moral

35

condemnation even if the pedestrian had by chance avoided the injury. Acts that only interfere

with widely held preferences, not autonomy, do not always qualify as immoral, according to

Brudner. Prohibiting these acts is justified if they “regulate for everyone’s benefit the pursuit of

private satisfactions” (180). Lest he be understood as relying solely on a utilitarian-esque

preference maximization analysis, Brudner stipulates that autonomy-based rights maintain

absolute priority over subjective preferences (e.g., we cannot limit free speech merely to increase

overall utility), and that negligent offences against preference-based laws can be punished only

with fines, not imprisonment (181-182).

It is worth mentioning that in the case of regulatory offences, the only significant

revisions suggested by Brudner’s theory to existing legal systems are in favor of potential

offenders. Brudner rejects strict liability as a condition for fault, saying that punishment is

unjustifiable if the offender was unable to foresee and avoid the offending act (181). In place of

strict liability, due diligence should be the strictest standard for welfare offences. Second, as

mentioned above, negligent offences that threaten only preferences, rather than autonomy,

should only be punished with fines and not imprisonment. This might mitigate the worry that

Brudner’s theory gives too much latitude to the state in criminalizing and punishing acts.

4.2 Measuring punishment

A second possible objection to legal retributivism is similar to the first: that it gives no moral

principle to determine the appropriate type and amount of punishment for a crime. Although the

unfair advantage version of moral retributivism was found to be problematic, it at least offered

35

Brudner does include among true crimes acts that obstruct or undermine legal institutions that protect liberty.

However, even philosophical anarchists would presumably regard someone bribing police or legal officials to be

immoral, assuming that the particular legal system were reasonably just.

36

an initially plausible way to measure the amount of punishment crimes deserve. I will examine

both Fingarette and Brudner to see how they stand up to this objection.

What does Fingarette have to say about measuring punishment? First, he rejects Kant’s

idea that punishment ought to reflect the characteristics of a crime (death for murderers,

castration for rapists, etc.). So long as a punishment directly humbles the defiant will of the

criminal, it is permissible (511). The amount of punishment, he says, depends on “the gravity of

the requirement” (511) that is laid down by the legislators. The “gravity” is partially, but not

solely, dependent on morality:

Moral judgments may have influenced the legislative decision to establish the

requirement of law and its gravity. But other facts, too, have an important influence on

that legislative decision – policy and politics, technical considerations related to the field

of activity covered by the law, and considerations internal to the legal system. We do not

need here to know how legislators weigh and synthesize all this… They [legislators]

establish, as part and parcel of the legislative act, how grave the requirement is to be, and

it is this that determines, in turn, the gravity of the offence against that requirement. The

graver the legislators mean their requirement to be, the graver the punishment [ought to

be]. (512)

What we have, then is the idea that there are two stages to determining punishment. The

legislators determine the gravity of the requirement, which in turn determines how severe the

punishment ought to be. Upon first reading, by speaking of the legislators “establishing” the

gravity of the punishment, Fingarette seems to mean that the correct amount of punishment is

whatever the legislators decide, which would clearly be an unacceptable answer. The most

favorable interpretation is to take him as meaning that the correct amount of punishment is

37

whatever would be selected by ideal legislators considering all the aspects of an act. Even if we

give such a favorable interpretation of Fingarette’s statements, he does not give significant

explanation of how the legislative decisions ought to be made, and so his comments fail to give a

satisfactory answer to the question of how to measure punishment. I turn, then, to Brudner.

Having divided penal justice into two categories (true crimes and regulatory offences),

Brudner’s account gives different guidelines for how to measure punishment. In the case of true

crimes, liability to punishment depends only on whether an act interferes with another person’s

formal agency. However, the amount of punishment “depends crucially (though not exclusively)

on the kind and extent of the harm caused or risked by a criminal interference” (10). So, to return

to an earlier example, a doctor who injected a patient with some drug against his will would be

liable for punishment even if the drug were harmless. However, the doctor would deserve greater

punishment if the drug caused harm, and even more so if the drug caused death. On the other

hand, liability for regulatory offences exists on the basis of welfare. Whether the act constitutes a

setback to another person’s agency is not necessary for welfare offence liability, but does affect

the degree and type of punishment. A negligent act that results in harm or death to a person

should be punished more harshly than some negligent act that only interferes with a person’s

ends. Imprisonment for a regulatory offence is only just if the offence (a) negligently risked harm

to another’s agency or (b) volitionally damages public interests.36

However, although Brudner provides some clear boundaries for punishment—when

imprisonment is acceptable and when only a fine can be justified—his account gives less than

sufficient guidance for how to set particular amounts of punishment. Of course, we cannot expect

detailed recommendations of punishment from a philosophical account of criminal law, any

36

For example, killing endangered animals could justly be punished with imprisonment if it were done intentionally,

but not if it were done negligently.

38

more than a theory can give us a formula to choose a particular amount of compensation (e.g. it

is just to require a criminal to pay the cost of a victim’s medical bills). It is probably too much to

ask from a theory of punishment that it be able to set precise measurements of imprisonment or

fines for specific crimes (e.g. assault causing paralysis equals X number of months

imprisonment).37

Even with this caveat, however, Brudner’s theory leaves something to be

desired. It does not specify how the central principles—protection of agency and real

autonomy—would be translated into actual penalties. Instead, it merely helps us to give a

relative ranking of crimes; for example, an assault causing a death should be punished more

harshly than an assault causing an injury.

Thom Brooks (2011) suggests that Brudner could improve his account by incorporating

elements from British Idealists (such as James Seth).38

Rather than seeing law as protecting

freedom, the British Idealists saw it as aimed at protecting a system of rights. The amount of

punishment would depend on the importance of the right that had been violated. Brooks claims

that this revision better explains the rationale behind some regulatory offences. I am doubtful

that this revision constitutes an improvement to Brudner’s theory, but Brooks does make another

claim here that is relevant to the matter of setting amounts of punishment. Brooks draws from the

British Idealists the principle that “there is no one fixed penal tariff for any crime: instead, we

continue to revise our account as we reconsider the importance of the rights we have vis-à-vis

each other” (9). It is very possible that Brudner holds a similar belief about punishment

measurement: although he does not state this explicitly, it would explain the scarcity of

discussion about measuring punishment. Let us assume, then, that Brudner would endorse

37

This is not to say that it cannot be attempted, for this is what Kant attempted to do when he tried to match the

characteristics of a punishment to the characteristics of the crime. 38

Both Brudner and the British Idealists look to Hegel’s political and legal writings for inspiration, so this is a

plausible move to make.

39

Brooks’s revision. This would leave the measuring of punishment up to the legislators, who

would then base the amount of punishment on either the importance of the right violated

(Brooks) or the severity of the setback to others’ freedom (Brudner).

This explicit endorsement of vagueness ought to give us pause. From the perspective of

legislators, it might not seem problematic to say that we select statutory penalties “as we

reconsider the importance of the rights we have vis-à-vis each other.” However, for anyone

seeking to evaluate the justice of a statutory punishment this sort of legal retributivism gives us

no specific criteria to use in assessment. As described by Brudner and Brooks,39

neither the

importance of a right nor the severity of a setback to liberty is a thick enough concept to be the

sole factor in setting a punishment. So far, then, this objection to legal retributivism has not been

satisfactorily addressed.

4.3 Must retributivism be pure?

A third objection to legal retributivism concerns its account of the aim of punishment. Previous

forms of retributivism are often criticized for their singular focus on penalizing the past actions

of a criminal, without regard to future effects, and legal retributivism as described so far seems

likely to elicit this objection. Retributivism has been opposed not only to consequentialist

theories, but also so-called “mixed” theories of punishment, which rely on both retributivist and

consequentialist considerations. These theories argue that a criminal should be punished only if

both he deserves it and the punishment will achieve some social gain. Usually, punishment is

only justified if it achieves some social gain (deterrence of future crime or reform of the

39

Here it must be pointed out, in his defense, that Brooks does not claim that the importance of a right should be the

only factor in setting punishment. This will become clear in the next section.

40

criminal), but desert operates as a constraint (to exclude the possibility that an innocent person

would be punished, or a criminal punished out of proportion to the crime).40

Both Fingarette and Brudner are clear that their theories are not mixed: punishment is

solely justified by the act of the criminal, with no role for deterrence or reform in consideration

of punishment. Brudner says of his theory, “legal retributivism is pure retributivism” (20).

Fingarette says,

In itself punishment has no constructive aim. If it tends to deter, or to induce moral

reform, so much the better…In real life punishment may deter or reform, or it may

not…This element of contingency is one major reason why, when the general practice of

punishment is justified by reference ultimately to deterrent or reformative ends, that

justification is subject to serious challenge (513).

Instead, the concept of punishment necessarily means only that the criminal be made to suffer.

Fingarette concludes from this that the essence of punishment (suffering) is an evil. Therefore, he

says, to justify punishment one must show that “law is morally justified.” The best we can say of

punishment, then, is that it is a “necessary cost” for the overall good of law (513).

Fingarette expresses well the sort of understanding found in pure versions of

retributivism (including Brudner) that has earned the distaste of critics. He admits that retribution

in itself is an evil, for it is not conceptually aimed at any good consequences. So long as this is

held to be true, it is unsurprising that consequentialist and mixed theories have remained

appealing as alternative theories: we have an intuition that punishment is better when it deters

future crime and reforms criminals. It does not merely seem desirable in some peripheral sense—

in the way that a painting that deterred crime would be desirable. The excellence of a painting is

40

H.L.A. Hart is usually understood as giving such a theory in Punishment and Responsibility, Oxford: Oxford

University Press, 1968.

41

found in aesthetic value, not how it affects potential criminals. However, the effects a system of

punishment, if not particular instances of punishment, has on future criminals seem relevant to

how we judge it. Intuitively, it seems that considerations of deterrence and reform still ought to

affect a system of punishment, even if their role is not as important as consideration of

retribution.

Drawing on both Hegel and British Idealists, Brooks argues that Brudner’s theory can be

made to accommodate the idea that deterrence and reform are proper aims of punishment. Since

Brudner holds that the aim of the law is to protect freedom, a system of punishment that leads to

fewer transgressions of freedom seems to be preferable to a system that does not. Both

deterrence and reform, when successful, protect freedom for the future, and for that reason, they

ought to have value to Brudner (13). Brooks says the following to explain how he would

incorporate deterrence and reform into legal retributivism,

If our primary aim is the protection of rights, then this task may be achieved in different

ways and it will depend upon the particulars of a situation… In neither case is

rehabilitation nor deterrence the justification of punishment with both playing a

secondary role to the primacy of desert and the protection of rights (13).

The vagueness that characterized Brooks’s discussion of the importance of a particular right has

reemerged here. Once again, Brooks leaves much up to the judgment of individual legislators

and judges. All that I can gather from this is that rehabilitation, deterrence and retribution should

be considered equally important when punishing some act. As before, this is unhelpful for

evaluating a specific penalty or sentence. Furthermore, it seems incorrect to call whatever theory

would emerge “retributivist,” since retributive, rehabilitative and deterrent elements would be

equally important.

42

How deterrence and reform might better be incorportated into legal retributivism

deserves more attention than I can give here, but there are two guidelines that I think such a

theory needs to follow. First, the theory ought to remain retributivist, in the sense that violation

of a law protecting freedom is both necessary and sufficient for a person to be liable for

punishment. It being necessary entails that no innocent person ought to be punished, regardless

of positive consequences; its being sufficient means that criminals ought to be punished even

when the punishment will neither deter others nor reform the criminal.

Second, deterrent and reformatory consequences ought to play a secondary role in

selecting statutory penalties and sentencing to determine both the type and amount of

punishment. Here, the primacy of retributivism would be seen in the fact that it sets constraints

on the type and amount of punishment: in Brudner’s theory, the extent to which a crime set back

the freedom of others would be the maximum amount of freedom of which that criminal could be

deprived.41

However, within that limit, legislators and judges ought to consider deterrence and

reform when setting punishment. For example, even though sending someone to prison for six

months for robbery might be justifiable on the basis of his act, if a more extensive probationary

program is more likely to reform him, then probation might be the option recommended by the

theory. On the other hand, if leniency to a high-profile criminal would be likely to embolden

potential criminals, then giving the maximum sentence might be preferable on this approach. 42

41

Assuming, of course, that it is possible for “setting back another’s freedom” to be a criterion for measuring

punishment, as questioned in the previous section. 42

Bill Edmundson has questioned whether it is possible for a theory that includes rehabilitation and deterrence in

any role still to count as retributivist. He refers to Michael Moore, who defines retributivism as a theory that

deserved punishment is a “good in itself” and says that any consideration of consequences is incompatible with

retributivism. However, what Moore has given is too restrictive to be a proper definition of retributivism; it is only

one conception of retributivism. A theory should be considered retributive so long as it holds that punishment should

be given on the basis of the criminal’s acts alone. I would expect controversy from my suggestion that a theory can

still be considered retributivist if it includes consideration of consequences like rehabilitation and deterrence, but the

limited roles played by those considerations means that my outlined theory can at worst be called “mostly

retributivist.”

43

In a sense, the resulting theory might be labeled as “mixed,” but it would be significantly

different from the usual sort of mixed theory, a la Hart. Retributivism operates as the sole or

main consideration at every level of justification; deterrence and reform have only a secondary

sort of influence in selecting the penalty and sentencing for a crime. Since Brudner holds the law

to be retributivist only in a legal, not moral, sense, deterrence and reform do not seem to be in

tension with his theory, but rather to strengthen it. Incorporating these two considerations gives

legal retributivism yet another advantage over moral retributivism: also it helps to alleviate the

problem pointed out in the preceding section—that considerations of freedom alone do not give

adequate guidance for setting a punishment.

Conclusion

I have shown some major problems with three of the most important varities of moral

retributivism: Morris’s unfair advantage theory, Hampton’s expressivism, and Moore’s intuition-

based approach. All regard punishment as primarily directed against immorality, which they

explicate in different fashions. All of them have difficulty establishing why only some immoral

acts should be punished, and how all things that deserve punishment are truly immoral. Legal

retributivism, particularly Alan Brudner’s version, offers a sort of retributivism that avoids that

congruence problem by explaining the law as directed against infractions of freedom, rather than

immorality. By employing two conceptions of freedom, Brudner’s theory gives us the resources

to punish threats to both agency and welfare. The weak areas of his theory, I argue, can be

strengthened by incorporating deterrence and reform as legitimate goals of punishment, although

in a way subordinate to retributivist considerations. Work remains to be done in legal

44

retributivism, but it offers the potential to incorporate the strengths of retributivism while

avoiding the most important weaknesses made in moralistic versions.

45

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